Posted on August 11, 2016 by 1

DAs – Not safe from amendments to LEPS

The NSW Court of Appeal has overturned a finding of the Land and Environment Court to the effect that the savings provision in local environmental plans (LEPs) in the form of the Standard Instrument – Principal Local Environmental Plan (Standard Instrument) would protect development applications (DAs) made after the LEP commences, but before an amending LEP commences.

The decision means that it is open to councils to defeat DAs by amending an LEP after the DA is lodged.

Mr De Angelis lodged a DA for a mixed retail and residential development well after the commencement of the Wingecarribee Local Environmental Plan 2010 (‘LEP 2010’). The Council, in order to defeat his development, amended the zoning plan in LEP 2010 by way of Wingecarribee Local Environmental Plan 2010 (Amendment No 38) (‘Amendment No. 38’) with the effect that the retail part of the development was prohibited.

The Land & Environment Court in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 considered the savings provision in clause 1.8A of the LEP 2010 and found that Amendment No. 38 did not retrospectively prohibit the development proposed by the DA because the reference to “this Plan” in clause 1.8A was to be read as the plan as amended by Amendment No. 38, such that clause 1.8A protected the DA. Our blog on the Land & Environment Court’s decision can be found here.

On 1 August 2016 the NSW Court of Appeal reversed the decision of the Land and Environment Court: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189.

The Court of Appeal held that savings provisions ‘deal with a precise point in time, namely the point at which a new legal instrument commences’ and did not have an ‘ambulatory effect’, meaning the relevant point in time did not change over time with subsequent amendments to the relevant LEP.  On that basis the Court held that clause 1.8A in LEP 2010 applied to DAs made before the LEP commenced in 2010. It did not apply to the date that any amending LEP (such as Amendment No. 38) commenced. The Court held that to give the clause the meaning given to it by the Land &  Environment Court  was ‘inconsistent with its purpose, as well as its language‘.

The Court noted the intention of the Council was to defeat Mr De Angelis’ DA. Amendment No. 38 did not itself contain a savings provision. The Court of Appeal held that in the case of an amendment to a zoning plan in an LEP (such as this case) there would need to be clear language in the amending LEP to indicate an intention that the savings provision in the principal LEP was intended to be amended to save DAs made before the amending LEP commenced. Clearly there was no such intention here.

Mr De Angelis argued that an LEP “ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of various provisions, such as might be appropriate in construing sections of an Act of Parliament”. Whilst the Court accepted that proposition generally, it maintained that basic principles of statutory construction did not allow for a complete re-write of the savings provision to allow the undetermined DA to be saved from Amendment No. 38.

The Court held that the DA was not saved by clause 1.8A. As such Amendment No. 38 operated to make the retail development proposed in the DA prohibited. The matter has now been remitted back to the Land and Environment Court for determination.

Clause 1.8A of LEP 2010 is in the same form as the savings provision in the Standard Instrument, and therefore in all LEPs in that form a reference to ‘this Plan‘ in clause 1.8A should be read as meaning the LEP when first commenced, unless subsequent amending LEPs change that meaning.

This interpretation of clause 1.8A makes it clear that councils can defeat DAs by amending their LEPs and not including savings provisions in the amending LEP.

The Court of Appeal’s decision can be found here.